DNA tests for felony arrestees upheld

The U.S. Constitution does not prohibit states from building large DNA databases by collecting samples from everyone arrested for serious crimes, the Supreme Court ruled in a 5-4 decision Monday.

The case produced an unusual divide on the court, with liberal Justice Stephen Breyer joining the court’s Republican appointed justices who upheld the practice and conservative Justice Antonin Scalia writing a bitter dissent joined by most of the court’s liberals.

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Writing for the majority, Justice Anthony Kennedy called the taking of a cheek swab from arrestees “a legitimate police booking procedure that is reasonable under the Fourth Amendment.” His opinion argued that the testing could be justified as a means of confirming the identification of suspects.

“In light of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks,” Kennedy wrote, joined by Chief Justice John Roberts, Justices Samuel Alito, Clarence Thomas and Breyer. “That same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody.”

Kennedy described DNA testing as a logical and more effective successor to the longtime practice of fingerprinting criminal suspects.

“An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment,” Kennedy wrote. “Identity has never been considered limited to the name on the arrestee’s birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custody.”

In dissent, Scalia accused the majority of a misleading decision that suggested the taking of DNA was about identifying the arrested suspect when the true purpose of such efforts is to solve crimes that are unrelated and may not even have been committed yet. He also said the majority had opened a Pandora’s box that could lead to widespread requirements to submit to DNA testing.

“Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia said from the bench. “This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane — surely the TSA must know the ‘identity’ of the flying public. For that matter, so would taking your children’s DNA when they start public school.”

“It may be wise, as the Court obviously believes, to make the Leviathan all-seeing, so that he may protect us all the better. But the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection,” Scalia added tartly in his dissent, which was joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.

President Barack Obama has enthusiastically endorsed the building of DNA databases and interconnecting them among state and federal agencies. However, some civil rights and civil liberties groups have warned that given racial patterns of interaction with the criminal justice system, the databanks governments’ are establishing will include large numbers of minorities who may be disproportionately investigated and prosecuted for crimes.

The Supreme Court case was brought by a Maryland man, Alonzo King Jr., who was arrested in 2009 for pointing a firearm at people. After his DNA was taken and matched a profile on file, he was charged with committing an unsolved rape six years earlier.

The Maryland law calls for collection of DNA sample from everyone arrested for a “crime of violence” as well as burglary and attempted burglary. The majority opinion endorses DNA testing in those cases Maryland defines as “serious crimes.” Kennedy was silent on whether such testing would be permissible for less serious offenses.